This particular blog entry will look at possible defenses that may be raised in a title II case. As is usual, there are different categories. Here we have case of the week, the court’s response to the arguments raised by the defendants in the case, and takeaways. Feel free to focus on any and/or all of the sections.
The Case of the Week
As discussed in a previous blog entry, principles of sovereign immunity also apply to other areas as well. For example, it could be a situation where an entity does not defend based on sovereign immunity but says that the law itself is unconstitutional because it is not an appropriate enforcement of the equal protection clause. That was partly the case in McBay v. City of Decatur, Alabama, 2014 WL 1513344 (N.D. April 11, 2014). In that case, three plaintiffs, all residents of the City of Decatur of Alabama (I know of at least two other Decaturs; I live in Decatur, Georgia and I am also aware of a Decatur, Illinois. I am fairly certain that there are others as well), sued the City of Decatur Alabama for violations of the Americans with Disabilities Act and the Rehabilitation Act of 1973. In particular, they claimed that Point Mallard was not accessible to them. They sought a declaratory judgment, attorney fees, injunctive relief, and costs. While the City of Decatur Alabama did not defend on the grounds of sovereign immunity (it couldn’t because cities are not sovereigns) ( see Board of Trustees of University of Alabama v. Garrett 531 U.S. 356, 369 (2001)), it did make various claims, including: 1) Iqbal/Twombly; 2) lack of standing to challenge identified violation; 3) failure to demonstrate that any particular City of Decatur of Alabama department, agency, entity or other instrumentality receive federal funding; 4) title II of the ADA exceeds congressional power; and 5) no private cause of action exists for enforcing title II regulations, especially with respect to transition plans and self-evaluation plans.
The Northern District of Alabama Discussion of the City of Decatur of Alabama Arguments
1. In their complaint, the plaintiff’s stated that they visited Point Mallard and were denied full, safe and equal access as a result of ADA violations and that they continue to and desired and intended to visit the premises again but could not due to the existing barriers. With respect to those barriers, they listed 30 examples of alleged deficiencies in the facilities. They also alleged that the City of Decatur of Alabama failed to adequately meet its ADA obligations by not having a self-evaluation plan and failing to develop a transition plan for modification of existing facilities. They also did not fully implement all structural modifications. The result of which is the City of Decatur Alabama denied the plaintiff’s full, safe and equal access to their programs, services and activities that were otherwise available to those without disabilities. Finally, they mention that they were subject to discrimination with respect to accessing the program, services and facilities and that they desired to utilize the City of Decatur of Alabama programs and services as well as return to Point Mallard. The City of Decatur Alabama claimed that these allegations weren’t good enough because they didn’t explicitly lay out that the barriers caused the plaintiff’s harm. The court was having none of it since the injury to the plaintiffs was obvious or at least easily inferred as a result of the deficiencies listed in the plaintiffs complaint.
Lack of Standing to Challenge Unidentified Violations
The plaintiffs also allege in their complaint that there were other current barriers to access and violations of the ADA in Decatur not specifically identified in the complaint and that they were not required to engage in a futile gesture according to federal regulations. Therefore, the complaint said that only once a full inspection is performed by plaintiffs or plaintiffs representative could all violations in barrier access be identified. The defense argued that no standing existed with respect to future unidentified violations. The court agreed for the following reasons:
1. The court relied on unpublished decision of the 11th Circuit, Norkunas v. Seahorse NB, LLC,444 Fed.Appx. 412, 2011 WL 5041705 (11th Cir. October 25, 2011), which held that plaintiff did not have standing to raise violations of the ADA and rehabilitation act for violations they had not yet experienced.
Failure to Properly Allege That Particular City Departments, Agencies, Entities or Other Instrumentalities of the City of Decatur of Alabama Received Federal Funding
1. § 504 of the Rehabilitation Act prohibits discrimination against an otherwise qualified individual with a disability from being excluded from the participation in, denied the benefits of, or being subject to discrimination solely by reason of his or her disability under any program or activity receiving federal financial assistance.
2. The Rehabilitation Act statute defines program or activity as including all of the operations of a department, agency, special purpose district or other instrumentality of the state or of a local government or the entity of such state or local government that distributes such assistance in each such department or agency to with the assistance is extended.
3. Citing to a 1981 case from the Fifth Circuit (Brown v. Sibley, 650 F.2d 760 (5th Cir. 1981), the northern district of Alabama said that a private plaintiff in a § 504 case has to show that the program or activity with which he or she was involved, or from which he or she was excluded, itself received or was directly benefit by federal financial assistance. In a footnote, the northern district of Alabama noted that the 11th circuit as recently as 2011 said that they intended to follow Brown.
4. Plaintiff never specified any particular city program or activity that received federal funds.
5. Plaintiff never stated that any such program or activity actually caused the Rehabilitation Act violations complained of.
6. Since there was not even a minimal allegation that the plaintiffs were actually discriminatory affected by a specific program or activity receiving federal financial assistance, the plaintiff’s claim for violations of the Rehabilitation Act had to be thrown out.
Title II of the ADA exceeds congressional Power
1. While the question of whether Congress has the power to abrogate sovereign immunity is a different question from whether substantive provisions of the ADA are a valid exercise of congressional power, the analysis is essentially the same (the court refers to sovereign immunity cases as being instructive).
2. To figure out whether a law has gone too far with respect to § 5 of the equal protection clause, you have to consider: the constitutional right that Congress sought to enforce when it enacted the ADA; whether a history of unconstitutional discrimination existed to support the Congressional determination that prophylactic legislation was necessary; and whether title II is an appropriate response to that history and pattern of unequal treatment.
3. The city of Decatur of Alabama did not elect to present any substantive argument with respect to whether a history of unconstitutional discrimination existed to support Congressional determination that prophylactic legislation was necessary (I find that an interesting choice).
4. The 11th circuit in its decisions has not narrowed the scope of valid title II claim solely to those implicating a fundamental right per Tennessee v. Lane, 541 U.S. 509 (2004).
5. Entertainment and recreational facilities survive a congruence and proportionality challenge even if the use of such facilities by persons with disabilities would be subject to rational basis review because:
A) it is simply illogical that Congress would insist that places of public accommodations (private entities and which include recreational and entertainment facilities), be accessible, but they would not be worried about whether the same kinds of facilities owned by governmental entities would need to be accessible;
B) such a holding would contradict the stated purpose of the ADA, which is one of creating a clear and comprehensive national mandate to eliminate discrimination against persons with disabilities and to integrate them into an economic and social mainstream of American life;
C) title II of the ADA contains within it a great flexibility for determining the extent of reasonable modifications required by the implementing regulations and therefore, a title II entity is not unduly burdened by the remedial requirements. The court is probably referring here to the fact that with respect to title II, it is not necessary for each facility to be accessible, rather it is program accessibility that is the key.
D) congressional investigations into the cost of title II compliance found that retrofitting older facilities did not have to be an expensive proposition and that building new facilities to be accessible was not a burden either.
Private Right of Action
1. A private plaintiff cannot enforce the regulation through a private cause of action if the regulation imposes an obligation or prohibition that is not imposed generally by the controlling statute. The opposite is true where the regulation simply effectuates the express mandate to the controlling statute. Another way to look at it, which is the way the 11th circuit looks at it, is to say that no private right of action exists to enforce a statute’s implementing regulations unless Congress has clearly indicated, expressly or impliedly, that a private right of action exists.
2. The 11th circuit (American Association of People with Disabilities v. Harris, 605 F.3d 1124 (11th circuit 2010), has also said that regulations interpret and define the scope of the ADA, rather than provide any sort of private right of action already present within the ADA. Keep in mind, that this particular case involved the 11th circuit saying that voting booths were not subject to the ADA; a position some courts may disagree with. See this blog entry.
3. It is one thing to say, for example, that failing to having accessible programs and sidewalks contemplate injuries and remedies of the ADA, but it is another to say that a transition plan in and of itself similarly hindered the disabled.
4. In other words, an important distinction exists between claims seeking to enforce self-evaluation and transition plans v. a claim asserting a direct violation of title II.
5. Plaintiff’s also alleged that the city’s failure to complete required for changes needed for equal programs, services, or activity access violated the ADA. Accordingly, while the lack of a self-evaluation and transition plan doesn’t directly hinder the plaintiff, the defendant’s failure to make reasonable modifications does directly harm the plaintiff in a manner anticipated by title II of the ADA. Accordingly, title II does contemplate a public entity removing architectural barriers that prevent disabled individuals in securing the benefits of public services. Therefore, an enforceable private right right of action does exist with respect to the structural barrier allegations.
6. While the plaintiff cannot have a private right of action with respect to self-evaluation and transition plans regulations, nevertheless those regulations can be cited as evidence of overall ADA noncompliance
1. Even though we have Iqbal/Twombly, courts will exercise some common sense with respect to figuring out whether sufficient allegations have been made.
2. At least in the northern district of Alabama, and most probably the 11th circuit as well, a plaintiff does not have standing to allege future violations of the ADA. However, if future violations of the ADA do occur or are found out during the course of discovery, the complaint can always be amended.
3. If you are alleging a § 504 of the Rehabilitation Act claim in the title II context, in the 11th circuit, you’re going have to show that the specific program or activity from which the plaintiff suffered discrimination received federal funds or was directly benefited by federal financial assistance. [It is interesting that the 1991 amendments to the Civil Rights Act were not mentioned here].
4. Title II of the ADA reaches past fundamental rights (jurisdictions may differ on this). From my read of ADA cases, this is a view that will probably withstand the test of time. That said, I could foresee a court holding that while title II of the ADA reaches past fundamental rights, that is not the same as saying that sovereign immunity would never apply in those instances.
5. On the plaintiff’s side, if a governmental entity is saying that the ADA goes too far, look to see whether the ADA addresses that situation in title III of the ADA, as a way of saying that it couldn’t possibly go too far if Congress was concerned about that same issue with respect to places of public accommodation.
6. If a governmental entity has violated title II/Rehabilitation Act a regulations, the question has to be asked whether the conduct being complained of is a direct violation of title II. In other words, do the regulations directly enforce the ADA or are they just interpreting and defining the scope of the ADA? Direct enforcement gives you a private cause of action, but regulations defining the scope and interpreting the ADA do not. I don’t find the “hinder the disabled,” language very helpful since such a standard is extremely subjective.
7. While there is no private cause of action with respect to self-evaluation and transition plans, the fact that it has not been done can be cited as evidence of overall ADA noncompliance with respect to matters for which there is a private right of action.
8. If you are a title II entity arguing that title II goes too far, what is the harm in arguing whether a history of unconstitutional discrimination existed?